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Beyond Cake Baking: The Next Discrimination Debate

On July 11, the House Appropriations Committee approved an amendment ostensibly seeking to prohibit discrimination against adoption and foster agencies on the basis of faith.

“Several states and localities across the country are not allowing religious organizations, such as Catholic Charities and Bethany Christian Services, to operate child welfare agencies,” Congressman Robert Aderholt (R-Ala.), said after the amendment was passed. “The reason for this is simply because these organizations, based on religious conviction, choose not to place children with same-sex couples.”

The bill would give a pass to agencies declining service to same-sex couples, allowing them to sidestep state and local LGBT anti-discrimination provisions.

LGBTQ Americans are on a bumpy road toward equality, and progress has not come in a straight line. The Supreme Court’s 2013 ruling in United States v. Windsor (which struck down the Defense of Marriage Act) and its 2015 ruling in Obergefell v. Hodges (which guaranteed the right to marry for same-sex couples) granted expansive new rights to LGBTQ individuals and couples, but these rulings were soon followed by a backlash of legislation and litigation by religious entities unhappy with those rulings.

The proposed law making its way through the House echoes language used in other areas by religious objectors to same sex-marriage, framing religious organizations, rather than LGBTQ individuals, as the true targets of discrimination.

This conflict was heightened, rather than resolved, when the Supreme Court recently ruled in favor of a Christian baker who declined to bake a custom wedding cake for a same-sex couple, citing his religious convictions.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was widely expected to be a litmus test for how the court would resolve fundamental disagreements over what to do with religious objectors to same-sex marriage. Yet the court’s narrow ruling, limited to the baker’s case, was interpreted as a win for both sides, doing little to resolve the fundamental disagreement underlying the case.

The tension in these cases stems from a fundamental disagreement over who is being discriminated against and who needs protection from the government.

Writing for the majority, Justice Anthony Kennedy wrote that “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” He also wrote that the Colorado Civil Rights Commission engaged in “hostility” toward the baker’s viewpoint when it found him in violation of the state’s anti-discrimination law.

“The optimistic reading of the Masterpiece Cakeshop ruling is the court handed down a very narrow ruling that’s specific to the facts of this case and it won’t have any negative ramifications for future conflicts between religious freedom and equality law,” Nelson Tebbe, Cornell law professor and author of Religious Freedom In An Egalitarian Age, said.

“But there’s also a more pessimistic reading, which is that the court has opened up a pathway for more challenges to anti-discrimination laws.”

The latest challenges are in the area of adoption and foster care services.

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Only eight states and D.C. have laws in place to protect LGBTQ foster parents from discrimination, and seven states and D.C. have laws to protect LGBTQ parents from discrimination in adoption, according to the Family Equality Council, an advocacy group for LGBTQ families.

Meanwhile, nine states allow state-licensed child welfare agencies to refuse to place children with LGBTQ families, if doing so violates their religious beliefs. Several such laws, including those in Kansas and Oklahoma, were passed just months ago.

“It’s an argument that history is going to remember very negatively, because it always has,” Troy Stevenson, executive director of Freedom Oklahoma, an LGBTQ rights advocacy organization in Oklahoma, said. Stevenson led a campaign to block the Oklahoma bill and is currently in the process of filing a lawsuit to challenge the new law. “You can’t use religion as a basis for discrimination. It’s something that we decided decades ago.”

A Michigan law that allows religiously affiliated adoption agencies to refuse same-sex couples is facing a court challenge. In 2017, two same-sex couples sued the state’s department of health and human services, alleging they were turned away by state-contracted and taxpayer-funded agencies because of the agencies’ objections to same-sex couples.

“We are challenging the practice of the state permitting these agencies, which are paid taxpayer money, to discriminate against same-sex couples,” Jay Kaplan, a staff attorney for the ACLU, who is representing the couples in that case, said. “It also crosses the line between separation of church and state, because the state in essence is promoting a particular religious viewpoint.”

Kaplan believes the Supreme Court’s Masterpiece ruling upheld key principles of LGBTQ rights that will ultimately lead to equality. “But we’ve seen that those who are in support of the baker’s position, they see this as a win, and they feel emboldened to try to introduce legislation or policy that would permit this form of discrimination in the name of religious belief,” he said.

In a friend-the-court brief opposing the ACLU’s lawsuit and supporting the Michigan statute, conservative Christian legal group Alliance Defending Freedom defended the state’s policy as a “win-win” for children and adoption agencies. In an interview, Alliance Defending Freedom legal counsel Kellie Fiedorek also called protections for faith-based objection to same-sex marriage a “win-win.”

Notably absent from both calculations were the same-sex couples who remain unable to adopt or foster children from these agencies. When asked directly, Fiedorek rejected the idea that religious agencies choosing not to serve same-sex couples engage in discrimination. “It’s not discrimination to seek to place a child in a home with a mom and a dad,” she said. “It’s acting consistent with your beliefs. No one has a right to a child.”

If anyone is being discriminated against, according to Fiedorek, it’s religious adoption agencies that are being asked to place children with same-sex couples in violation of their beliefs.

“What we’re seeing in the adoption context is increasingly the government is targeting faith-based foster care providers, adoption providers that want to prioritize placing children with a mom and a dad,” she said.

A Christian foster parent recently sued the City of Philadelphia over its decision to end a foster care contract with Catholic Social Services because of the organization’s refusal to work with LGBTQ individuals or same-sex parents. “At this time the city is threatening to stop allowing CSS to place children in foster homes on a permanent basis because of our deeply held religious beliefs,” a spokesman for the Archdiocese of Philadelphia said via email. “We hope and pray for relief from the courts so that we can continue to serve children and young people in need.”

Advocates like the ADF and the religious liberty law firm Becket, which is representing the foster parent in the suit against Philadelphia, argue that state nondiscrimination provisions force religious agencies out of business. It remains unclear how true that is. In 2011, the Catholic Social Services groups in Illinois withdrew from their state contracts following the implementation of state policies protecting same-sex couples. But the organizations immediately re-formed under new names, seamlessly continuing to provide adoptions and foster-care services to all eligible parents.

“Government discrimination that forces a faith based provider out of society is unconstitutional and devastates families and children who need that loving home the most,” she said. “They’re trying to force them to violate their religious beliefs and adapt to same-sex couples.”

LGBTQ rights advocates like Kaplan believe Fiedorek has it backward.

“If you want to be part of a contract, a benefit provided to you by the state, the state can specify that you can’t discriminate on these categories,” he said. “That’s not discriminating or attacking a particular religion.”

“The reason that a government would stop doing business with a Catholic adoption agency is not because it’s discriminating against Catholics or even people who are religious,” Cornell law professor Tebbe said.

The tension in these cases stems from a fundamental disagreement over who is being discriminated against and who needs protection from the government: the religious agencies providing adoption and foster care services, or the same-sex couples hoping to use them.

This is where Masterpiece may have further muddied the waters.

“Rhetorically, a lot of Justices signed on to this idea that there are rights on both sides of these cases,” Tebbe said of the Supreme Court’s ruling. “‘We have to balance the religious freedom rights of conservative Christians against the equality rights of LGBT people.’ That is a misleading type of symmetry, because LGBT people are subject to structural injustice.”

“I think that one of the big takeaways from [Masterpiece] is that people of good will will hold the belief that marriage is between a man and woman, and they shouldn’t be punished for that,” said Kellie Fiedorek of the Alliance Defending Freedom.

Under the Trump administration, the Justice Department has taken the position that the 1964 Civil Rights Act does not cover sexual orientation or gender identity.

This conflict has implications far beyond cake shops or even adoption. Most states still don't protect LGBTQ individuals from discrimination in the workplace, housing, and public accommodations, and under the Trump administration, the Justice Department has taken the position that the 1964 Civil Rights Act does not cover sexual orientation or gender identity. Wherever advocacy groups are able to secure legal protections for LGBTQ individuals, we should expect pushback from certain religious groups hoping to gain an exemption from those rules.

In a study published in 2016, sociologists Andrew L. Whitehead and Samuel L. Perry found that people who “practice their religion regularly, read the Bible literally, believe the Bible is perfectly true but must be interpreted or are Evangelical Protestants are much more likely to oppose adoption by same-sex couples.”

These religious objections are based in part on the belief that that children are not best served in homes with same-sex parents. (Extensive research has shown that children growing up with two parents of the same sex fare just as well as their peers with heterosexual parents.)

This is the belief that most bothers Kris Williams, an LGBTQ Youth Service Coordinator in Oklahoma City. Williams adopted her son in 2012 with her then-wife (they have since separated).

Williams adopted her son directly through the Oklahoma Department of Human Services. The Oklahoma DHS has since launched an initiative to transfer more adoption and foster care services into the purview of private organizations, creating new uncertainty for LGBTQ prospective parents.

Williams, who was raised in the Church of the Nazarene but now considers herself more spiritual than explicitly Christian, said her religious upbringing has informed many of her decisions, including her adoption and career choice. “The lessons I chose to take from the church led me to where I am today, which is more mission-driven work, taking care of children,” she said.

“I’m feeding queer kids and giving them reassurance that they’re loved and not alone.”

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